NICHOLAS A. TOUMPAS COMMISSIONER

~taft nf ~rfu ~amps4irr DEPARTMENT OF HEALTH AND HUMAN SERVICES

129 PLEASANT STREET, CONCORD, NH 03301 -3857 603-271-9200 FAX: 603-271-4912 TOO ACCESS: RELAY NH 1-800-735-2964

July24, 1015

Centers for Medicare and Medicaid Services Department of Health and Human Services ATTENTION: CMS-2390-P P.O. Box 8016 Baltimore, MD 2 1244-8016

RE: CMS-2390-P, Medicaid and Children's Health Insurance Programs; Medicaid Managed Care, CHIP Delivered in Managed Care, Medicaid and CHIP Comprehensive Quality Strategies, and Revisions Related to Third Par·ty Liability

I want to thank the Centers for Medicare & Medicaid Services ("CMS") for providing the State of New Hampshire's Department of Health and Human Services (" Department") with the opportunity to comment on the proposed rules to better al ign Medicaid managed care programs with those of Medicare Advantage plans and coverage offered through Qualified Health Plans ("QHP").

Like many states, the New Hampshire State Legislature, in June 2011 , enacted Senate Bill 147 requiring the Department to employ a care management model for administering the N. H. Medicaid program. The Department's Medicaid Care Management ("MCM") program enrolls recipients into a managed care organization ("MCO") which manages their care with a "whole person approach" to providing services . Currently, our program is in Step 2 of its development which wi ll move nearly a ll of N.H.'s Medicaid recipients into the MCM program, and will eventually include N.H 's four home and community based waiver services and other long term wa iver services.

Accordingly, the Department apprec iates CMS' goal of creating more standardized practices across the states to manage health care delivery and beneficiary experience across different product lines, and appreciates the amount of work that has gone into developing these proposed rules. Our comments are being submitted from the perspective of implementing the changes resulting from the application of these proposed rules to Medica id managed care and Fee for Service ("FFS") deli very models.

We begin our comments by di scussing the overall administrative impact, and we recommend that given the potential scope of the impact, CMS shou ld , at a minimum, consider a phased in approach for the new regulations. The proposed rules will extend a more rigorous regulatory structure to managed care, and require the states to submit an unprecedented amount of documentation to CMS. We note that in isolation the new reporting, oversight, and systems requirements associated with the entire notice of proposed rulemaking does not appear to be cumbersome; however, in their entirety they will significantly impact overa ll program costs and will result in the redirecting of MCO and State staff resources to monitoring processes rather than investing in direct care and care coordination.

Further, without add itional CMS staffing, we are concerned that CMS is unlikely to have the ability to thoroughly review all of the documentation in a timely manner which will adverse ly impact the State's abi lity to effectively operate its program. A staggered timeline for implementation will help to address the administrative and fisca l impact associated with implementing these rules, and will g ive CMS time to more thoroughly deve lop its oversight framework and guidance to states. Finally, we recommend that

Centers for Medicare and Medicaid Services July 24, 2015 Page 2 of II

CMS reconsider requ iring these administratively burdensome changes to be met by contract year 201 7. The policy changes and reporting requirements will require analysis, dedicated staff resources, contract amendments, and programmatic changes which will require significant time and dedicated resources to implement. States have limited capacity and resources to carry out some of these changes, and may have to redirect resources from other efforts.

Part 431 -State Organization and General Administration

§43 1.500 Comprehensive state quality strategy.

The proposed rules require each state to develop and routinely update a comprehensive qua lity strategy for all Medicaid programs the state operates. The specific performance measures are yet to be developed by CMS, and each state' s quality strategy will include measures developed by CMS as well as those developed by the state. While we understand the importance of assessing and measuring performance to strengthen and improve the quality of care delivered to Medicaid recipients, we note that compliance with the new changes will take time, and add itional staffing and budgetary resources to develop, implement and monitor. Creating a Medicaid program wide qual ity strategy does broad ly align with the Department's miss ion and vision; however, we are concerned about the challenges of meeting this requirement in too sh01t a time span.

Assessing quality across all populations will be difficult to perform given the broadness of the different programs and the various competing qua lity approaches particularly with the lack of coordination between various federal agencies (e.g. CDC, HRSA, CMS and SAMHSA all have different quali ty approaches). Good quality oversight of the entire Med icaid program will require additional agency staff with the appropriate expertise and training to successfu lly mon itor qual ity across all programs. We recommend CMS provide support to state staff for capacity bu ilding, similar to the recent CMS Adult Medicaid Quality Grants. Such support will allow states to hire and train staff to promote the expedient development of a comprehensive system. We believe CMS should allow an enhanced match for all state quality activities either directly to the states or through external quality review organizations to provide ongoing supp01t for quality activities. Finally, we request CMS clarify that not a ll updates to the quality strategy wi ll trigger a review of the strategy's effectiveness or trigger the extensive stakeholder consu ltation, as this may create an undue admi nistrative burden.

Par·t 433 -State Fiscal Administration

§433. 138(e) Identifying liable third parties.

The proposed rules require state agencies to identify paid claims for recipients containing diagnosis codes indicative of trauma, injury, poisoning and other external causes for the purposes of identifying I iable third parties. The Department complies with the lCD-9 codes required under the cu rrent rule and has completed the lCD-I 0 mapping of accident and trauma codes. We appreciate the rule's fl exibility in allowing the State to determine the trauma codes; however, we note that the rule no longer identifies the range of codes (800-999) indicative of trauma. Since the regulation does not specify what codes to flag for clai m review, what request would an agency need to make to waive the requirement under §433. I 38(1)? Would a waiver request involve waiving all of (e) and not specific diagnosis codes? Does CMS want agencies to submit, as part of their State Plans, the specific diagnos is codes identified as indicative of trauma for CMS approva l? How will CMS va lidate the codes agencies designate as trauma codes? If CMS is not going to revi ew the designated codes, how wi ll agencies know that they have selected the appropriate codes? How wi II CMS assu re the ability to conduct comparison analysis between states and identify best practices?

Centers for Medicare and Medicaid Services July 24, 20 IS Page 3 of II

Par t 438 - Managed Care

Subpar·t A- General P rovisions.

§438.3 through §438.8 Standard contract provisions; Special contract provisions; Actuarial soundness; rate development standards; rate certification submission; medica/loss ratio (MLR) standards.

The proposed rules add new requirements for MCO contracts such as increasing the leve l and time requ ired for CMS to review and approve them, and creating a new approach to actuarial soundness. We appreciate that the changes will provide states with a clear template of the required structure and terms of contracts with MCOs. We note that compl iance with the new requirements for CMS review and approval may delay negotiations and implementation of the MCO contracts which will create uncertainty for the State, MCOs and providers. Add itionally, the process of changing the capitation rate annually to ensure actuarial soundness wi ll have to begin at least 120 days before the rates are to take effect. Such a long lead ti me does not allow for states to be nimble in their management and oversight of MCO activi ties and performance under the MCO contract.

The Department agrees with CMS' goa ls of efficiency and transparency in the rate sett ing process; however, we are concerned that the new requi rements will delay rate approva ls and create unnecessary fi nancial and programmatic uncerta inty. Delays will adversely impact contract approvals and modifications, waiver extensions, and performance measurements. To avo id this outcome, CMS should estab lish a timeline for its rev iew and approval of rates, and it should have a contingency plan for when rev iew runs past the effective date for the MCO contracts.

CMS should collaborate with the states to outline a process for rate reviews. The framework should lay out timelines and expectations for both CMS and states around what occurs once rates are transmitted to CMS. It should be structured with the goals of achieving transparency, minimizing duplication of effort, and promoting efficient review. We recommend that CMS establish a clear process for its review of rates and institute a hold harmless pol icy for when CMS approval is delayed by allowing states to use the proposed rates until CMS approval is received. We also recommend that small rate changes should not trigger the need for new CMS approval as it restricts the abili ty of states to accommodate market shifts during a contract year.

The proposed rules require states to have a MLR at 85% and descri be the requirements for the numerator and dominator of the formula. We beli eve states should have the flexibili ty to include non-medica l services in the calculation of quality improvement activities in the MLR. The Medicaid popu lation differs from populations covered by private insurance, and Medicaid service packages include benefits not covered by other insurers. The proposed rule states that quality improvement activities may be included in the numerator, and th is is a step toward recognizing the un ique nature of Medica id and the population served. Whi le the proposed inclusion of quality improvement activities is welcome, we believe the rule should give states flex ibili ty to delineate which non-medical services are considered activi ties that improve health care quality. We also believe CMS should provide a min imum of 2 years after the rules' adoption for states to develop and implement MLR methodologies.

The proposed rule requ ires that any contract with a MCO including long term serv ices and supports (" LTSS") as a covered benefit must be delivered in settings consistent with §441.30 1(c)(4). We seek clarification on thi s ru le. The timeline for states to bring their settings into compliance with the HCBS rule is 2019. This proposal requi res that LTSS benefits be delivered in a HCBS compliant setting by contract year 20 17. Is th is the intent of the rule? CMS should consider al ign ing timelines around HCBS settings across both regu lations.

Centers for Medicare and Medicaid Services Ju ly 24, 201 5 Page 4 of II

§438.3(u) Standard Contract requirements-Payments to MCOs and P!HPs for enrollees that are a patient in an institution for mental disease.

The proposed ru les permit a state to make a monthly capitation payment to a MCO for an enrollee receiving inpatient treatment in an institution for mental disease ("IMD") as long as the length of stay is no more than 15 days during the month. The IMD payment exclusion was intended to prevent Medicaid funds from covering treatment at in-state psychiatric hospitals, but in application, prevents medically necessary inpatient services at non-state facilities for people whose addiction treatment or menta l health needs requ ire residential treatment.

Wh ile we appreciate CMS' attempt to address the IMD payment exclusion, we are not convinced it applies to the Medicaid managed care model, and we note that FFP is still prohi bited for an enrollee between the ages of 22 to 65 regard less of delivery system. (See §435.1 009). We believe that all the proposed rule allows for is the payment of capitation by the State to the MCOs, but does not affi rmatively permit MCOs to use that payment to pay an IMD for the services rendered since the payment exclusion still remains. CMS should clearly state that MCO payment of IMD stays can be incorporated into actuaria I rate ca leu lations.

Further, we believe the length of stay for an enro llee should be based upon medical necessity such as the criteria issued by the American Society of Addiction Medicine. The length of stay for an enro llee dea ling with a substance use di sorder ("SUD") and/or mental health issue is variable and shou ld be decided by the appropriate clinicians based on the enrollee's needs. We believe limiting the length of stay based on fiscal reasons or with an arbitrary cap may result in enrollees being di scharged prematurely resulting in increased recidivism and lack of stable care. We note that some individuals with a SUD will be using a substance at the time of admiss ion and may requ ire a longer stay than 15 or 30 days to detox.

We believe it is faul ty to rely upon the Medicaid Emergency Psychiatric Demonstration as the basis for the 15 day cap because it did not deal with care being administered to those with SUD disorders. The report examined emergency psychiatric care and in its conclusion, states the "demonstration ... wi ll not provide information about treatment provided by IMDs through managed care plans" and it "does not address inpatient treatment for substance-related disorders ... (T)he results apply only to adul ts with mental illnesses who are suicidal, homicidal or otherwise judged to be dangerous to themse lves or others." Has CMS considered exclud ing substance use disorder from the definition of mental disease for the purposes of determ ini ng if a treatment fac ili ty is an IMD? Has CMS considered allowing states to use § 1115 wa ivers to cover serv ices provided in IMDs in some circumstances? We recommend CMS consider other options rather than creating a carve-out for a capitation payment to MCOs.

The proposed rules attempt to clarify the " in lieu of' standard. We appreciate the flex ibili ty the ru les grant in a llowing MCOs the abi lity to furnish care in alternative settings in lieu of covered State Plan services; however, CMS' proposal appears to a llow the MCOs to depart from any State Plan coverage limits or other limitations such as types of health professionals excluded under the State Plan. We prefer that MCO services be based upon the State Plan, and we believe that keeping theN .H. State Plan as the basis of the MCO benefit offering provides the public with transparency and provides the State with a guarantee that it will receive the matching federal Medica id dollars.

§438.1 0 Information requirements.

The proposed ru les require the states and MCOs to provide paper copies of al l in fo rmation within 5 days of the request including prov ider directories. We believe requiring paper documentation especially prov ider directories is burdensome and will increase ad mi nistrative costs. Prov ider directories change daily and are very lengthy. We are curious about th is requi rement when the current focus is on making

Centers for Medicare and Medicaid Services Ju ly 24, 2015 Page 5 of II

information availab le electron ically. We believe requiring paper copies of information already contained on a website should have a 20 day turnaround. We recommend CMS cons ider removi ng the requ irement to provide paper copies of provider directories, and we recommend CMS spec ify wh ich machine readable format will be acceptable for provider directories.

Subpart B- State Responsibilities.

§438.54 and §438.56 Enrollment; Disenrollment.

The proposed rules require 14 days of FFS coverage for a ll enrollees. While we certai nly agree that enrollees should be free to choose a MCO plan, we are concerned that this could lead to confusion on the part of enrollees and providers, and we note that the rule does not affirmatively state that once an enrollee has chosen a MCO, the FFS coverage ends. New enrollees shou ld be able to reap the benefits of care coordination provided by the MCO as soon as the enrollee chooses a plan.

The rules propose to allow enrollees who use Med icaid L TSS to have the option to disenroll from the ir plan, at any time, when a residential, institutional or employment supports provider exits the MCO's network. Prov iders often change networks and in the commerc ial market, patients must sw itch to another provider w ithin their insurance plan's network o r pay out-of-pocket for the out of network provider's care. While we appreciate that CMS wants to prov ide assurance of contin uity of care to those rece iving L TSS, we believe creati ng a for cause d isenro ll ment in this instance does not meet CMS' goa ls of aligning Medica id managed care w ith coverage in the market place.

Further, we are concerned that the requirement gives providers inappropriate power over LTSS networks and delivery in managed care, and it is duplicative of existing beneficiary protections. Specifically, it provides a pathway for L TSS providers to withdraw from a MCO network due to a preference for fee-for­service, which undermines state efforts to move to val ue based care. Under the existing rules, enrollees can switch plans when there is a lack of access to providers experienced in dealing w ith the person's unique needs. Finally, if enro llees return to FFS, we bel ieve it will create a situation in wh ich states must dup licate nearly every operat ion they are purchasing from the MCOs in order to assure access, quality and outcomes of services. Such a situation will increase the costs of operating the Medicaid program.

§438.62 and §438.208 Continued services to enrollees; coordination and continuity of care.

The proposed ru les require states to have a trans ition of care pol icy to assure that enro llees do not experi ence severe health consequences when transitioning from FFS to managed care and between MCOs. The rule also requires the plan be contained within the quality strategy plan. Requ iring the MCOs to a llow transition with providers who are not currently in the MCOs network may requ ire states to stipu late in their managed care contracts that payment for those services must be equivalent to what the providers are currently receiving as payment under FFS or with another MCO. We are concerned that stipulati ng MCO's participation does not mean the provider will accept the MCO rate. To assure continuity of care and provider choice by the enrollees, payment to providers should be the equivalent to what the providers are currently receiving to encourage providers to continue to perfo rm services. We recommend CMS provide a template for the transition plan to a llow states to define thei r own approaches and consider the diverse needs of the populations serviced. We note that development will take time, resources, and stakeholder invo lvement.

§438.70, §438.7 1, and §438.11 0, Stakeholder engagement when LTSS is delivered through a managed care program; Beneficiary support system; Member advisory committee.

Centers for Medicare and Medicaid Services July 24, 2015 Page 6 of II

The Depattment's MCM program is currently in Step 2 of its development which wi ll move nearly all of N.H.'s Medicaid recipients into the MCM program, and will eventually include N.H's four home and community based waiver services and other long term waiver services. The Department believes the transition to managed care should not di rectly or inadvertently impair the quali ty of care experienced by long term care recipients, and has worked di ligently to align the integration of LTSS services into the MCM program with local and national guiding principles, guidelines and recommendations. Accordingly, the Department adopted recommendations from national organizations such as the Nationa l Counci l on Disabi lity and the Nationa l Senior Citizens Law Center.

The Department also integrated recommendations from N.H. stakeholders such as the MCAC, Granite State Home Health Association, N.H. Health Care Association, N.H. Association of Counties, Developmental Services Quality Council, Nursing Home Affiliates, and Brain Injury Association ofN.H. Add itional ly, the Department conducted a deliberative plann ing process and will continue to use publ ic forums after the implementation of it's § 1915(c) waiver. Because of this work, and the Depattment's use of CMS guidance in its development of Step 2, the Department believes the overall design of Step 2 will provide integrated services in a fashion that will offer opportunities for enrollees for active community and workforce participation to the extent desired and appropriate for each enro llee.

The proposed rules require states to develop and oversee a choice counseling program administered by enrollment brokers who will ass ist enrollees in the enrollment process and perform oversight of LTSS program data. Currently, the Department contracts with a vendor to provide choice counseling, but may need to provide additional contract fund ing if the scope of the cu rrent program is not expansive enough under the proposed ru les, and the vendor may need more staffing to perform the new fu nctions. We request CMS provide clarity regard ing the enrollment broker oversight activities of L TSS program data. What data should the enrollment broker be rev iewing? How often should the review take place?

The Depatt ment believes the proposed rules will require a new LTSS ombudsman position wh ich wil l need to be created, funded and housed outside of the Depatt ment. The scope of the services the L TSS ombudsman will perform is significant, and we anticipate development must include objective and veri fiable measures. We note that if the Depattment's current choice counseling program needs to be expanded and a new LTSS function added, both tasks will require time, increased staffing and budgetary resources, which will increase program costs.

Subpart C- Em·ollee Rights and Protections.

§438. 1 04 Marketing activities.

The proposed rules allow communication to an enrollee by a MCO participating in Medica id managed care and also operating as a QHP in the marketplace. We bel ieve this change wi II be helpful to enrollees who experience transitions between Medicaid and QHP eligibil ity. Periodic income fluctuations means some people with incomes near the federa l poverty li mit will migrate between Medicaid and the marketplace. We believe this change wi ll reduce market churn. We agree al lowing marketing by MCOs offering multiple products wil l be useful to some consumers in managing their health needs and will improve care coordi nation by minimizing disruption to care.

Subpa•·t D- MCO, PHIP, and PAJIP standards.

§438.68, §438.206, §438.207 and §440.262 Network adequacy standards.

The proposed rules for network adequacy standards attempt to align Medica id standards to coverage provided by Medicare Advantage plans and private insu rance standards. Without adequate access to

Centers for Medicare and Medicaid Services July24,201 5 Page 7 of II

providers, enro llees cannot receive the preventive care and treatment necessary to ach ieve pos itive health outcomes and improve quali ty of life. We note that "network adequacy" is different f rom "access". Data wh ich shows a MCO network as adeq uate may not completely address whether recipients are having problems accessing the care they need or perceive they need or whether there is a demand for the service. We believe data requirements are useful for tracking and comparison, but may not provide enough information on access because they do not address whether prov iders are actually taking new patients, have ava il able appointments or del iver good care.

We encourage CMS to develop standards addressing access to providers in MCO networks. We believe methods to measure enrollee timely access like secret shoppers, and surveys prov ide more useful information than a re liance sole ly on network filing data. We note that the use of secret shoppers is sometimes v iewed negatively by providers, and that surveys are time consuming and costly. Accordi ng ly, CMS should consider an enhanced match to states who choose to use these methods. We note there wi ll be additional costs to the State to have the EQ RO perform network adequacy moni toring, and an increased cost to the State to track and monitor all exceptions granted under the ru les.

With regard to recipient access to providers under FFS, CMS proposed a new rule which requires the states to promote access and to ensure that a ll recipients have access to covered services in a manner that meets the ir unique needs. Whi le we believe it is important for the State to have fl exibility to determ ine the appropriate standards for access g iven the specific geographic and provider avai labi li ty constra ints, we request clarity on this rule. What process does C MS want states to use to evaluate access under FFS? What data elements should the states be usin g? How does C MS env ision states w ill promote access, and what criteria wi ll CMS be using to eva luate whether the states are promoting and ensuring access adequately?

§43 8.208( c )(3)(i i) Treatment/service plans.

The proposed rules state when a MCO produces treatment or service plans for enrollees who require L TSS services, the plans must be deve loped by a person trained in person centered planning usi ng a person-centered process. We request c larification on this requirement. Is the rule requ iring treatment plans to be deve loped by individuals cert ified in Person Centered Counseling? Atta inment of ce1tification will require tra ining by a qua lified trainer. If the rule requires this, we note that the logistics of train ing staff who write plans w ithin a certa in time period must be aligned w ith the number o f sta ff who require training and the number of tra iners. Does C MS want attestation by the State or MCO? Does CMS want the State to credential the persons developing the treatment plan? Does CMS want the states to track whether each treatment plan was developed by persons with the ce1tification? We note that credentialing and tracking the requirement w ill increase the need for staffing and w ill increase administrative costs.

§438.242 Health information systems.

C MS requested comment on how it might provide guidance to states on standards related to health information exchange. The Department supports the principal that a ll individuals, thei r providers and payers, should have consistent and ti me ly access to health information in a standardized format that can be securely exchanged. To that end, CMS should cons ider supporting the use of managed care contracts to promote the adoption of hea lth information techno logy through the use of appropriately allocated enhanced 90/10 HITEC J-1 in the managed care capitation payments. Examples of promotion the MCOs could undertake are enhanced provide r payments for high perform ing users of health information technology as part of MCO payment reform eff01ts, proportional funding o f state w ide heal th information excha nged organ izations, and MCO system development activities which promote adoption of health information technology or use of hea lth information exchanges.

Centers for Medicare and Medicaid Services July 24, 201 5 Page 8 of II

Subpart E-Quality Measur·ements and Improvement; External Quality Review.

§438.330(c)(4) Quality assessment and performance improvement program - LTSS pe1jormance measurement.

The proposed rules require the states to incorporate any L TSS balancing performed at the managed care

plan level into the qual ity assessment program review. CMS estimates an annual burden of one hour for

the assessment of rebalanc ing efforts. We disagree with the proposed annual burden as we believe

balancing requires both MCO and agency staff to perform the following tasks: data query, data review,

data scrubbing, data correction, financial report preparation, finan cial report review, correction and

generation of the fina l rep01t. Each task, without encountering any problems, will take an hour to perform.

We request CMS revise its estimate on the annual burden.

§438.66, §438.330, and §438.334 Stale monitoring requirements; Quality assessment and performance improvement program,· Medicaid managed care quality rating system.

The proposed rules require the states to have a monitoring program for a ll managed care operations. The

Department and its MCM quality program strives to enhance the hea lth and well-being of enrollees in

managed care and provides overs ight o f MC M program operations through data driven quality assurance

and improvement activities. The Department currently has a robust MCO monitoring standard and

performs such as activities as readiness reviews, and quality monitoring beyond clinical data. However,

we are concerned with the some of the new requirements.

The operational steps the Department must take to comply with the increased level of documentation are

administratively burdensome. We are concerned that complying w ith the new documentation

requirements coupled w ith the increased level of CMS oversight wil l undoubtedly slow time lines and

create additional operational costs. Further, the requirement for read iness reviews 90 days prior to all go­

live dates could be problematic because much of operational readiness cannot be developed that far in

advance. We recommend C MS cons ider requiring a pre li minary review at 90 days focusing on reviewing

issues and actions over the 90 day period, and concluding with a fina l readiness review at 30 days be fore

the go- live date.

The proposed rules require a new annual program assessment report. We note that this wi ll initially be a

significant challenge for the State to perform, and we beli eve C MS should consider issu ing a template,

table of contents or other c lear articulation of expectations, t imeframes, and content for the report. If left

unstructured, s ignificant time and reso urces will be needed to complete a comprehensive report to satisfy

various d iverse stakeholders. We are also concerned that the report w ill be dup licati ve of other reporting

requirements. These inc lude the submi ssion of rates, quality strategies, contracts, EQRO reports, data

compliance plans, etc. According ly, we recommend that CMS clearly articulate what information states

are expected to provide, and C MS should seek to min imize duplication.

The proposed rules wi ll create national performance improvement project (" PIP") to pics and meas ures

which will provide comparators and allow best practices to emerge. We be lieve the national PIPs will

provide specific ins ight into how each state is doing in comparison to other states, and may provide

economies o f scale for MCO quality e fforts. However, they may reduce the State's flexibility to address

local priori ties and may constrict qua lity improvement efforts. We believe the states, in general, and N.H.

specifically, w ill need to engage strongly in the measure selection process. When C MS begins the process

to develop nationa lly required PIPs, it should choose PIPs that are broadly appl icable in a ll ki nds of

states, are clearly important issues for improvement, can be a ligned w ith other payers, and can have an

impact. Additiona lly, considerati on should be g iven to projects that improve population health. To

Centers for Medicare and Medicaid Services July 24, 2015 Page 9 of II

provide flexibility, CMS cou ld develop a menu of high priority topics, allow states to choose from them, and offer technical assistance to states around the implementation of them.

The proposed rules allow for CMS to deve lop a managed care quality rating system after a robust public engagement process. While laudable, a quality rating system with signi fica nt public input will take years to develop and may still fa ll short of being meaningful to all stakeholders. The rules a llow states to submit their own rating system; however, there are no clear criteria on what CMS will require for approval. We recommend CMS develop a too lkit or use one type of national rating system, and we prefer that states not be permitted to change the way measures are weighted because to do so wou ld not prov ide meaningful information to enrollees or the states.

The proposed ru les state that CMS may specify performance measures for calculating quality ratings after it conducts a public notice and comment process. We propose that CMS consider the following measures when developing its performance measures:

• Measures should be broad ly applicable to all states and ideal ly the private sector as well. Where measures are not appl icable or meaningful in a state, there should be a waiver process .

• Measures should be comparable across the states. For instance, common exclusions should be required to ensure limited bias in the data (e.g. measures should exp licitly state an exclusion/ inclusion for Medicare duals, and individuals with commercial insurance as primary coverage for measures that Medicare or commercial cover. )

• Measures should be based on admi nistrative data to the full est extent possible and to measures that are required for certification by national groups.

• Measures should be validated for the populations studied and shou ld measure detai l in the public domain. Technical assessment shou ld be available to reso lve measurement concerns with uniform application of decisions to al l Med icaid programs.

• Measures should be tailored to Medicaid program and populations (e.g. HEOIS measure rev iew after mental health hospitalization must include members in an !MD even if Med icaid is not paying the claim).

• Measures should be broadened beyond clinica l quality and member satisfaction in the child and adult core sets and should include operational measures.

• Measures should include soc ial determinants of health such as housing, primary language, and educat ion.

• Measures should not include FFS population calculations when the eligible population is small enough (we recommend 5% threshold).

Subpart F- G rievance System.

§43 8.402( c)( 1 )(i i) General requirements.

The proposed rule will allow providers to appeal an adverse benefit determination without the written consent of the enro llee. We believe providers should only be permitted to file an appea l on an enrollee' s beha lf if they have express written consent of the individ ual. While an enrollee may find it appropriate to seek ass istance from a provider in initiating an appeal, enrollees should provide written consent, and be aware of the steps the provider is taki ng on the enro llee's behalf. Without this sa feguard, there is a potentia l for providers to initiate appea ls without an enrollee's knowledge and which may not be in an enrol lee's best interest.

Centers for Medicare and Medicaid Services July 24, 2015 Page 10 of II

Subpart H- Additional Pr·ogr·am Integrity Safeguards.

§ 438.600 Program Integrity.

The proposed rules require the states to increase mon itoring of subcontractor compl iance w ith the managed care contract, and require states to screen and enroll all MCO network providers whether they are ordering, referring or furni shing services. The states must a lso rev iew ownership and control di sclosures submitted by MCOs, and subcontractors, and must confirm identities of a ll parties by using the Social Security Administration 's databases. The purpose is to prevent "safe havens" for providers excluded from traditional Medicaid ; however, the proposed rules do not address the disparate federal databases and processes the states must use to conduct provider screening and enrollment. C MS should consider streamlining the mechanisms and tools. For instance, CMS could use batch matching, provide baseline standardization or set up a s ingle portal where states can access real-time information in the databases.

We note that to conduct searches using the Social Security Administration 's databases, the State must require al l parties provide a social security number. Accordingly, we recommend C MS affirmatively state in the rules that a social security number is required for the searches . (See §455 .1 04(b)( I )( ii)). We believe w ithout this affirmative statement some individuals will refuse to prov ide a soc ia l security number which wil l hamper the State' s abil ity to determine whether the party qualifies as a prohibited relationship and should be barred from participation in the Medicaid program. We are also concerned the enrollment requirements could be seen as admini stratively burdensome particularly by specialty, subspecialty and out of state providers which may inadvertently impact access.

Subpart J- Conditions for Federal Financial Participation (FFP).

§438.807 and §438.818 Deferral and/or disallowance of FFP for non-compliance with Federal requirements; Enrollee encounter data.

The proposed rules a llow CMS to defer or disa llow FFP under a MCO contract when CMS finds the contract noncompl iant or finds the capitation rates as developed and described in the rate certification noncompliant. CMS shou ld establi sh a timel ine for its review and approva l of rates, and it should have a contingency plan for when rev iew runs past the effective date for the MCO contracts. As we stated previously, CMS should clearly articulate that delays in approving rates by CMS should not result in the disa llowance or deferment of FFP.

The proposed rules require states to s ubmit to CMS, within 90 days of the effective date of the rule's adoption, a detailed plan to ensure states submit valid and t imely encounter data to CMS, and it a llows for states to use the external quality review activity to va lidate the data. If a state is unable to provide data that C MS cons iders compliant, then C MS wi ll defer or disallow FFP fo r al l or part of the MCO contract. We understand the need to get accurate encounter data, and we have included in our MCO contracts language to ensure that each MCO reports records of items and serv ices even when the MCO has its own capitated arrangement with a provider. However, we believe the 90 day requirement to submit the detai led plan is unreasonable g iven that CMS has yet to describe the frequency of the submissions and the level of detail that it w ill require. We recommend CMS develop a template for the plan, and we believe states should have 90 days after CMS releases a template. If no temp late is prov ided by CMS, States should have 180 days to submit the detailed plan . Further, we believe CMS shou ld not withhold FFP for incomplete encounter data, but should co ll aborate with the State in understanding and address ing key

challenges in coll ecting and reporting encounter data.

Centers for Medicare and Medicaid Services July 24, 201 5 Page I I of II

We appreciate the opportunity to comment on these proposed rules to better align Medicaid managed care programs with those of Medicare Advantage plans and coverage offered through QHPs. We appreciate both the thorough effor1s of the drafters to be comprehensive, and the will ingness of CMS to review questions and comments on the proposed rules. The State has many questions and concerns regarding the effect of the proposed ru les on our Medicaid programs. Accordingly the State encourages CMS to continue dialogue with state Medicaid programs to clarity intent and respond to questions such that whatever rules are fi nally approved, the impact on our clients is pos itive and does not result in untoward outcomes due to administrative burden or lack of clarity.

cc: Sylvia Matthews Burwell, Secretary, US DH HS Her Excellency, Governor Maggie Hassan The Honorable Kelly Ayotte The Honorable Jeanne Shaheen The Honorable Frank Guinta The Honorable Ann Kuster

Sincerely,

Nicholas A. Toumpas Commissioner

The Department of Health and Human Services' Mission is to join communities and families in providing opportunities for citizens to tlchie ve health and independence.